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Lesson 40 - Free Speech 1:

A Brief Road Map

There are four basic steps in most free speech analyses. The next several messages will describe these steps in more detail, but let us introduce them up front:

1. Determine whether the *government* is imposing the speech restriction. U.S. Constitutional free speech guarantees apply only to the government (any federal, state, or local agency, including public universities and public employers). If the speech restriction is imposed by a *private* entity, the First Amendment does NOT apply.

2. Determine in what capacity the government is acting:

   - as SOVEREIGN (passing general laws regulating people's conduct),

   - as EMPLOYER (regulating what its employees can say, on or off the job),

   - as PROPRIETOR (regulating what can be said on its property, including its computers),

   - as K-12 EDUCATOR (regulating what public primary or secondary school students can say in school),

   - as UNIVERSITY EDUCATOR (regulating what college or university students can say on campus), or

   - as SUBSIDIZER or SPEAKER (paying for a certain kind of speech).

3. Determine whether the speech involved falls

   - in one of several *unprotected* categories (such as obscenity or threats),

   - a few categories that get *intermediate protection* (such as commercial advertising),

   - or has *full protection*.

4. Apply the appropriate test determined by your answers to questions 2 and 3.

5. Four warnings:
   1. As usual, this is a complicated field, and much of what we say will in some measure be an oversimplification.

   2. For constitutional purposes, "speech" includes writing, pictures, music, video, theater, dance, and quite a few other forms of expression. Whenever we talk about a "speaker," we mean to include anyone who uses cyberspace to communicate words, pictures, or sounds.

   3. Keep in mind that all these rules apply only to *American* free speech guarantees. The rules in other countries may vary dramatically.

   4. What we say here is tailored to the special problems of cyberspace - we'll largely omit some important doctrines that are not very relevant online, so don't assume that everything we say is equally applicable in the offline world.

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